Memon Adambhai Haji Ismail vs Bhaiya Ramdas Badiudas And Ors. on 24 April, 1974
In our conclusion on the aforesaid points we are supported by the decisions in Gopal Raghunath v. Krishan,3 Bom LR 420; Baluram v. Bai Pan2a9woba'i (1911) ILR 35 Bom 213; Appabhai Motibhai v. Laxmichand Zaverchand and Co., AIR 1954 Bom 159; Bai Sbanta v. Kbalas Ramjibhai Chhotalal, AIR 1.956 Born 144; Jugalkishore Jodbalal v. Bombay Revenue Tribunal, 60 Bom LR 1075 = (AIR 1959 Boin 81); Shamsadhi Naga Pinjari v. Gunvautibai Ramsnehi, (1972) 74 Bom LR 723; Ganga Ram v. Smt. Phulwati, AIR 1970 All 446 (FB); Raunaq Ram v. Prabb Daval, AIR 1930 Lah 439; Munni Devi v. Puspalata Mondal, (1967) 71 Cal WN 282; Ramayya v. Venkatachellamma, AIR 1953 Mad 834; Balbhadar Mal v. Conar.r. of Income Tax, Punjab, AIR 1957 P.Anj 284; and Mrs. Achamma Thomas v. E. R. Fairman, AIR 1970 Mys 77. The same view has been taken by J. B. Mehta, in Special Civil decided on 9-9-1970(Guj) and myself in Second Appeal No. 629 of 1968 decided on 5-12-1968 (Guj). The presumption arising under Section 114 relates to an official act being done in a regular manner and if the Court is not in a position to raise such a resumption in respect of the endorsement, the Court should not exhibit the endorsement but exhibit only the returned envelope and in that case the evidence of returned envelope is itself sufficient to rebut the presumption of the letter being received by the addressee which arises under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. Once presumptions arise under Section 27, of the General Clauses Act and Section 114 of the Indian Evidence Act, the burden to rebut the said presumptions would be on the addressee in case where the letter is return ed back with an endorsement of "Refused" one who challenges an endorsement made by the postal authority in discharge of the duties has to lead evidence to rebut the presumption arising because of the endorsement. The question then is one of rebuttal by lead by evidence and such question can he raise only at the stage of trial of the suit. Such a question which depends upon leading evidence cannot be raised for the first time in appeal or revision. If the registered envelope containing the endorsements received in evidence and marked as an exhibit in the case, the endorsement made thereon cannot be questioned in appeal or revision arising out of the suit in which the envelope is exhibited,